In Mitchell v. Kayem, M.D., et al., 54 S.W.3d 775 (Tenn. App. 2001), the Court of Appeals of Tennessee reversed a judgment against an ear, nose and throat specialist based upon a jury verdict in favor of a patient who "conceded that she would have undergone cancer surgery whether or not the inherent risks of the procedure were disclosed, . . . but . . . would have sought a second opinion and would have chosen treatment at a Nashville facility." Id. at 778.
Rejecting the argument that "different course of treatment" includes both (1) "a different medical procedure," and (2) "choosing a different surgeon to perform the same medical procedure," the Mitchell Court stated:
Treatment is defined as "the action or manner of treating a patient medically or surgically" while procedure is defined as "a particular way of accomplishing something or of acting." Merriam-Webster's Medical Desk Dictionary, 728, 576 (1993).
As we interpret the language in Ashe v. Radiation Oncology Assocs. 9 S.W.3d 119 (Tenn. 1999), treatment or procedure refers to the type of procedure and the manner of performing it rather than to the person performing the procedure.
In summary, it is not disputed that the surgery was necessary to avoid progression of the disease and ultimately death. . . . Recognizing her condition, she ultimately conceded she would have had the surgery, regardless of whether the risks had been made known to her. She argues that she would have sought a more experienced surgeon. However, Dr. Kayem states in his affidavit that the risk of the complications suffered by Ms. Mitchell were greater because of her previous surgeries; . . . the only alternative to Ms. Mitchell was the same surgical procedure performed by another surgeon; and the generally accepted occurrence rate of these unknown risks and complications of the procedures applies uniformly to all qualified surgeons, regardless of their skill level. Therefore, the possibility of the risks and/or complications occurring to Ms. Mitchell would not have been different in the hands of another surgeon. . . . These statements in his affidavit are not refuted. (Id. at 781-82.)